San Diego Navy Broadway Complex Coalition v. United States Department of Defense

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SAN DIEGO NAVY BROADWAY No. 12-57234
COMPLEX COALITION,
Plaintiff-Appellant, D.C. No.
3:11-cv-00154-
v. JM-WMC
UNITED STATES DEPARTMENT OF
DEFENSE; ROBERT M. GATES, in his OPINION
official capacity as Secretary of the
U.S. Department of Defense;
UNITED STATES DEPARTMENT OF
THE NAVY; RAY MABUS, in his
official capacity as Secretary of the
U.S. Department of the Navy;
NAVAL FACILITIES ENGINEERING
COMMAND; CHRISTOPHER J.
MOSSEY, in his official capacity as
Commander of the Naval Facilities
Engineering Command; NAVAL
FACILITIES ENGINEERING COMMAND
SOUTHWEST; S. KEITH HAMILTON, in
his official capacity as Commander
of the Naval Facilities Engineering
Command Southwest,
Defendants-Appellees.
2 SDNBCC V. USDOD
Appeal from the United States District Court
for the Southern District of California
Jeffrey T. Miller, Senior District Judge, Presiding
Argued and Submitted
February 5, 2015—Pasadena, California
Filed March 30, 2016
Before: Harry Pregerson and Jacqueline H. Nguyen, Circuit
Judges and James G. Carr,* Senior District Judge.
Opinion by Judge Pregerson;
Dissent by Judge Carr
SUMMARY**
Environmental Law
The panel affirmed the district court’s summary judgment
in favor of federal defendants, and denial of the San Diego
Navy Broadway Complex Coalition’s motion for summary
judgment, in the Coalition’s challenge to the issuance of a
2009 Finding Of No Significant Impact based on a 2009
Environmental Assessment for redevelopment of a four-block
*
The Honorable James G. Carr, Senior District Judge for the U.S.
District Court for the Northern District of Ohio, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
SDNBCC V. USDOD 3
site owned by the United States Navy in downtown San
Diego.
The panel held that the federal defendants fulfilled their
obligations under the National Environmental Policy Act.
The panel held that San Luis Obispo Mothers for Peace v.
Nuclear Regulatory Commission, 449 F.3d 1016 (9th Cir.
2006), required the federal defendants to address the
environmental consequences of a possible terrorist attack on
the Navy Broadway Complex. Specifically, the panel held
that the Navy considered the relevant factors in its “hard
look” at potential terrorism at the Navy Broadway Complex.
The panel also held that the federal defendants did not abuse
their discretion in determining that there was no significant
impact from the possible environmental effects of potential
terrorism at the Navy Broadway Complex, and a
Supplemental Environmental Impact Statement was not
required.
District Judge Carr dissented from the majority’s
determination that the federal defendants adequately
addressed the environmental consequences of a possible
terrorist attack on the Navy Broadway Complex.
COUNSEL
Corey J. Briggs (argued) and Mekaela Gladden, Briggs Law
Corporation, Upland, California, for Plaintiff-Appellant.
Allen M. Brabender (argued) and Ignacia S. Moreno,
Assistant Attorney General, United States Department of
Justice, Environmental & Natural Resources Division,
Washington, D.C., for Defendants-Appellees.
4 SDNBCC V. USDOD
Allen Scott Andrews, San Diego, California, for Amicus
Curiae Pro Se.
John McNab, San Diego, California, for Amicus Curiae Pro
Se.
OPINION
PREGERSON, Circuit Judge:
The San Diego Navy Broadway Complex Coalition (“the
Coalition”), a San Diego civic group, appeals a summary
judgment ruling in favor of the United States Department of
Defense and various other named defendants (collectively,
“Federal Defendants”), as well as the denial of the Coalition’s
motion for summary judgment against the Federal
Defendants. The Coalition challenges the issuance of a 2009
Finding Of No Significant Impact based on a 2009
Environmental Assessment for redevelopment of a four-block
site owned by the United States Navy in downtown San
Diego. The Coalition argues that the district court erred in
granting summary judgment in favor of the Federal
Defendants, insisting that the Federal Defendants violated the
National Environmental Policy Act (“NEPA”) by failing to
produce a Supplemental Environmental Impact Statement that
addressed a potential terrorist attack at the redeveloped
military and civilian facilities near the San Diego waterfront.
We affirm the district court’s decision.
SDNBCC V. USDOD 5
FACTUAL AND PROCEDURAL BACKGROUND
A. The San Diego Navy Broadway Complex
The San Diego Navy Broadway Complex (“Navy
Broadway Complex”) is a fifteen-acre waterfront site located
adjacent to downtown San Diego, California. The site
currently serves as the home to several non-operational,
administrative components of the United States Navy. The
current on-site Navy facilities were built more than seven
decades ago.
In 1982, the Navy began considering options for
consolidation of various Navy installations in the San Diego
area. Because of budget constraints, the Navy pursued a “co-
location” program in which the federal government retained
title to property and leased portions of the property for private
revenue-generating uses that would offset the cost of new
administrative facilities. Congress enacted legislation in
1986 that authorized the Secretary of the Navy to pursue a
public-private venture to implement the co-location concept
at the Navy Broadway Complex site. See National Defense
Authorization Act for Fiscal Year 1987, Pub. L. 99-661,
§ 2732, 100 Stat. 3816 (1986).
In June 1987, the Navy and the City of San Diego
(“City”) executed a Memorandum of Understanding to
establish the terms of potential future development on the
Navy Broadway Complex site. To comply with its
environmental obligations under NEPA, the Navy completed
an Environmental Impact Statement (“EIS”) in 1990 and
issued a Record of Decision in July 1991. The EIS evaluated
six action alternatives, in addition to the no-action alternative,
and discussed a full range of environmental issues. The
6 SDNBCC V. USDOD
Record of Decision memorialized the Navy’s decision to
redevelop the Navy Broadway Complex site and identified
essential uses for the site. The Navy Broadway Complex
would expand from 861,000 square feet of Navy office,
warehouse, and industrial space to 3.25 million square feet of
mixed military and civilian facilities, including hotels, retail,
and entertainment spaces.
The Record of Decision directed that the next step was for
the Navy and the City to enter into a development agreement,
as contemplated under the 1987 Memorandum of
Understanding. Negotiations and state litigation followed,
including consultation and issuance of a consistency
determination from the California Coastal Commission to
ensure the Navy Broadway Complex was consistent, to the
extent possible, with the state’s coastal zone management.
Following public review, on November 2, 1992, the City
enacted an ordinance approving the Development Agreement
for the Navy Broadway Complex. The Development
Agreement incorporated a development plan, urban design
guidelines, and provided a guide to the planning and approval
process for the project. The Development Agreement also
included environmental mitigation measures that were
consistent with the 1990 EIS. However, adverse San Diego
real estate conditions in the early 1990s caused the Navy and
City to delay project implementation.
B. The 2006 Environmental Assessment
As the real estate market in San Diego improved in the
mid-2000s, the Navy took steps to implement the
SDNBCC V. USDOD 7
Development Agreement.1 To facilitate implementation of
the Development Agreement, and in consideration of the
amount of time that had passed since the 1990 EIS, the Navy
completed an Environmental Assessment under NEPA in
2006 that analyzed the environmental impacts associated with
implementing the 1991 Record of Decision and the 1992
Development Agreement (“2006 EA”). As part of the 2006
EA process, as well as a means to re-introduce the
development plan to the public, five public hearings took
place beginning in April 2006. The Navy considered the
resulting public comments in its NEPA analysis.
In late 2006, the Navy published a notice that the 2006
EA was available for public viewing and issued a 2006
Finding of No Significant Impact for the Navy Broadway
Complex’s development. A private development partner,
Manchester Pacific Gateway, LLC, signed a lease in
November 2006 after the issuance of the 2006 Finding of No
Significant Impact.
In January 2007, the Coalition, a citizens’ group
purporting to represent San Diego residents, filed a lawsuit
alleging, among other claims, that the Navy failed to comply
with NEPA’s public notice and participation provisions prior
to issuing the 2006 EA and 2006 Finding of No Significant
Impact. The district court agreed that the administrative
record was insufficient to demonstrate that the Navy gave
proper public notice of its intent to prepare the 2006 EA and
Finding of No Significant Impact. The district court granted
1
In 2005, the federal Base Realignment and Closure Commission issued
a directive to the Navy to either implement the Development Agreement
or close the Navy Broadway Complex and relocate the commands to other
bases in San Diego, thereby adding urgency to the redevelopment effort.
8 SDNBCC V. USDOD
partial summary judgment in favor of the Coalition and
instructed the Navy to address the insufficiency.
C. The 2009 Environmental Assessment
The Navy produced a new draft EA on September 17,
2008 and widely publicized the draft EA’s public availability.
Three public hearings were held in September and October
2008. In March 2009, the Navy issued a finalized EA (“2009
EA”). The 2009 EA incorporated updated conditions in San
Diego and examined the Navy Broadway Complex’s
potential as a terrorism target. The Navy found that “[b]ased
on current threat reporting, there is no known specific threat
targeting” the Navy Broadway Complex. The 2009 EA
concluded that the risk of terrorism was “too speculative,
remote, and removed from the environmental effects of the
proposed action to merit further analysis under NEPA.” The
Navy altered the final 2009 EA to include its response to
public comments about terrorism in the draft EA.
After finalizing the 2009 EA, the Navy issued a 2009
Finding of No Significant Impact, concluding that no changed
or unexplored circumstances required a new or Supplemental
EIS before the Navy proceeded with redevelopment of the
Navy Broadway Complex.
On January 25, 2011, the Coalition again filed suit in
federal district court challenging the redevelopment of the
Navy Broadway Complex on several grounds. One such
ground was the Navy’s alleged failure to prepare a
Supplemental EIS that adequately examined the potential
environmental impact of a terrorist attack at the Navy
SDNBCC V. USDOD 9
Broadway Complex.2 Both parties moved for summary
judgment.
The district court granted the Navy’s motion for summary
judgment on all claims. Addressing the claim that the Navy
failed to adequately consider the potential environmental
impact of a terrorist attack, the district court stated that “the
Navy took a hard look at the environmental consequences of
potential terrorist attacks and adopted standards to address
potential terrorist concerns.” The court further remarked that
since “the same naval administrative services that are
currently located on the [Complex] site will remain after
construction of the project . . . the potential terrorist threat
remains essentially the same, except that the administrative
services will be located in modern, improved, and higher
security facilities.” The district court entered final judgment
for the Navy on October 17, 2012. The Coalition timely
appealed.
DISCUSSION
A. National Environmental Policy Act
NEPA creates a “national policy [to] encourage
productive and enjoyable harmony between man and his
environment.” Dep’t of Transp. v. Pub. Citizen, 541 U.S.
752, 756 (2004) (quoting 42 U.S.C. § 4321). NEPA was
2
Before the district court, the Coalition claimed that: (1) the Federal
Defendants failed to adequately consider alternatives under NEPA; (2) the
Federal Defendants failed to prepare a Supplemental EIS based on alleged
significant new circumstances and information relating to terrorism,
climate change, seismic hazards, traffic impacts, excessive development,
and cumulative impacts; and (3) the Federal Defendants violated NEPA
by prejudicing the outcome of the NEPA process.
10 SDNBCC V. USDOD
designed to minimize environmental damage and to promote
“the understanding of the ecological systems and natural
resources important to” the United States. Id. The Supreme
Court described NEPA’s “twin aims” as “plac[ing] upon an
agency the obligation to consider every significant aspect of
the environmental impact of a proposed action[, and]
ensur[ing] that the agency will inform the public that it has
indeed considered environmental concerns in its
decisionmaking process.” Baltimore Gas & Elec. Co. v. Nat.
Res. Def. Council, Inc., 462 U.S. 87, 97 (1983).
NEPA requires that federal agencies prepare an EIS. To
fulfill the NEPA policy aims, agencies shall:
include in every recommendation or report
on proposals for legislation and other major
Federal actions significantly affecting the
quality of the human environment, a detailed
statement by the responsible official on—
(i) the environmental impact of the
proposed action,
(ii) any adverse environmental effects
which cannot be avoided should the
proposal be implemented,
(iii) alternatives to the proposed action,
(iv) the relationship between local short-
term uses of man’s environment and the
maintenance and enhancement of long-
term productivity, and
SDNBCC V. USDOD 11
(v) any irreversible and irretrievable
commitments of resources which would
be involved in the proposed action should
it be implemented.
42 U.S.C. § 4332(2)(C).
As an alternative to preparing an EIS, an agency may
prepare a more limited Environmental Assessment (“EA”)
which includes a Finding of No Significant Impact, briefly
stating why the action will not significantly impact the
environment. Dep’t of Transp., 541 U.S. at 757–58. But if
the EA does not lead to the conclusion that a Finding of No
Significant Impact is warranted, the agency must still prepare
an EIS. Id. at 757.
B. Standard of Review
We review a district court’s grant of summary judgment
in NEPA cases de novo. Northern Cheyenne Tribe v. Norton,
503 F.3d 836, 845 (9th Cir. 2007). An agency’s action “must
be upheld unless it is ‘arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with the law.’”
Tri-Valley CAREs v. U.S. Dept. Of Energy, 671 F.3d 1113,
1123 (9th Cir. 2012) (quoting 5 U.S.C. § 706(2)(A)). NEPA
“does not mandate particular results but simply provides the
necessary process to ensure that federal agencies take a hard
look at the environmental consequences of their actions.” Id.
(quoting Muckleshoot Indian Tribe v. U.S. Forest Serv.,
177 F.3d 800, 814 (9th Cir. 1999)) (internal quotation marks
omitted). We examine an EA “to determine whether it has
adequately considered and elaborated the possible
consequences of the proposed agency action when concluding
that it will have no significant impact on the environment.”
12 SDNBCC V. USDOD
San Luis Obispo Mothers for Peace v. Nuclear Regulatory
Com’n, 635 F.3d 1109, 1119 (9th Cir. 2011) (citing Ctr. for
Biological Diversity v. NHTSA, 538 F.3d 1172, 1215 (9th Cir.
2008)). We must consider “whether the EA fosters both
informed decision-making and informed public
participation.” Ctr. for Biological Diversity, 538 F.3d at 1194
(citations omitted).
C. Potential Terrorism Must Be Considered Under
NEPA.
In San Luis Obispo Mothers for Peace v. Nuclear
Regulatory Commission, the Nuclear Regulatory Commission
(“NRC”) argued that the construction of an installation for the
on-site storage of spent nuclear fuel rods did not require the
NRC “to consider the possibility of terrorist attacks” for the
purposes of NEPA. 449 F.3d 1016, 1035 (9th Cir. 2006)
(“Mothers for Peace I”). This court held that while “security
considerations may permit or require modification of some
. . . NEPA procedures,” such modifications do not absolve an
agency for its legal duty to fulfill NEPA’s requirements, such
as public contribution to the NRC’s decision-making process.
Id. at 1034. We determined the NRC’s categorical dismissal
of the possibility of a terrorist attack was unreasonable and
remanded for further proceedings. Id. at 1030, 1035.
In the instant case, the Federal Defendants argue that our
holding in Mothers for Peace I that terrorism must be
considered under NEPA is inapplicable to the redevelopment
of the Navy Broadway Complex. While the Federal
Defendants correctly state that the nuclear fuel storage
facility at issue in Mothers for Peace I is not the same as the
Navy Broadway Complex, the Coalition is correct that the
SDNBCC V. USDOD 13
Navy Broadway Complex can hardly be classified as
“everyday facilities” as the Federal Defendants assert.
The Navy Broadway Complex currently holds, and after
redevelopment will continue to hold, major military
commands coordinating “base operating support functions for
operating forces throughout the region,” as well as providing
“logistics, business, and support services to . . . commands of
the Navy[,] Coast Guard . . . and other joint and allied
forces.” The facility will be located in heavily-populated
downtown San Diego “adjacent to the San Diego Bay
waterfront” and “surrounded by a mix of urban uses,”
integrating hotels, commercial facilities, and public space into
the Navy Broadway Complex site itself. As the Navy stated
when providing a terrorism threat assessment for the 2009
EA, “a general threat exists in the U.S. from al Qa’ida and
affiliated groups and individuals.”
Given the government’s assessed general risk of
terrorism, the location of the redevelopment project, and the
military commands to be housed in the Navy Broadway
Complex, we reject the Federal Defendants’ arguments
against applying Mothers for Peace I and find that they must
address the risk of a possible terrorist attack in their NEPA
analysis.
D. The 2009 EA Sufficiently Satisfies NEPA’s
Requirements.
The level of analysis provided by the Federal Defendants
in the 2009 EA was sufficient to satisfy NEPA’s requirements
under Mothers for Peace I. After issuing a draft EA in
September of 2008, the Navy held three public meetings and
received numerous public comments related to the threat of
14 SDNBCC V. USDOD
terrorism. The Navy responded to the comments and
modified the 2009 EA to address the public’s concerns
regarding terrorism. Such constructive exchanges with the
public demonstrate the “informed public participation” that
NEPA requires. See Ctr. for Biological Diversity, 538 F.3d
at 1194; see also Save the Peaks Coal. v. Forest Serv.,
669 F.3d 1025, 1037 n.5 (9th Cir. 2012) (“[C]ourts may
consider responses to comments for confirmation that an
agency has taken a ‘hard look’ at an issue.”).
The Naval Criminal Investigative Service (“NCIS”), a
security, counter-intelligence, counter-terrorism and law
enforcement agency conducted the threat assessment on the
proposed Navy Broadway Complex. Looking at national,
regional, municipal, and specific threats to the Navy
Broadway Complex, NCIS determined that “no known
specific threat of a terrorist attack” existed. We believe that
the Navy erred by including this reasoning in its analysis.
The risks associated with terrorism are constantly in flux, and
whether or not the intelligence community is aware of a
specific threat to a facility at the time a NEPA analysis is
conducted should have no bearing on whether to consider the
impacts of an attack. Nevertheless, as explained below, we
deem the Federal Defendants’ NEPA analysis sufficient
despite this erroneous finding.
The modified 2009 EA clearly explained the Navy’s Anti-
Terrorism Force Protection requirements and clarified that
those requirements “would apply to all onsite buildings
occupied either wholly or partially by [Department of
Defense] personnel,” provided such personnel meet a
minimum occupancy rate in the building. The 2009 EA also
incorporates by reference the Unified Facilities Criteria
specifications for the Department of Defense’s Minimum
SDNBCC V. USDOD 15
Antiterrorism Standards for Buildings, UFC 4-010-01
(“Unified Facilities Criteria”).3
A review of the Unified Facilities Criteria demonstrates
that the Anti-Terrorism Force Protection requirements are
based on an examination of plausible terrorist attack
scenarios including attacks by explosives, vehicle bombs,
waterborne vessel bombs, placed bombs, mail bombs, indirect
fire, direct fire, as well as chemical, biological, and
radiological weapons. UFC 4-010-01, DoD Minimum
Antiterrorism Standards for Buildings (8 October 2003 as
amended in 2007) Chapter 2, 3–4. The Unified Facilities
Criteria mandates a planning process for the Navy Broadway
Complex designed to ensure protection against terrorism and
other security concerns by considering various “possible
incidents or modes of attack” referred to by the Coalition’s
expert. Id. at Chapter 1, 2.
Further, the 2009 EA stated that antiterrorism building
standards would “reduce the potential damage that could be
inflicted by terrorist activity.” And the complex would be
limited to administrative functions and would not remain
operational if subject to a terrorist attack. The Navy further
concluded that the complex “would not jeopardize the
national security of a military installation or the safety of our
citizens” by virtue to its proximity to non-government
buildings.
3
The Department of Defense Minimum Antiterrorism Standards for
Buildings, UFC 4-010-01, (8 October 2003 as amended in 2007) is
available at http://wbdg.org/ccb/DOD/UFC/ARCHIVES/ufc_4_010_01
_2003.pdf (last checked February 29, 2016).
16 SDNBCC V. USDOD
We are mindful of the Supreme Court’s admonition
against imposing additional procedures on an agency’s NEPA
decision-making process. See Vermont Yankee Nuclear
Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519,
548–49 (1978). “The scope of an agency’s inquiry must
remain manageable if NEPA’s goal of ensuring a fully
informed and well considered decision is to be
accomplished.” Metro. Edison Co. v. People Against Nuclear
Energy, 460 U.S. 766, 776 (1983) (citation and internal
quotation marks omitted). Moreover “an agency [such as the
Department of the Navy] must have the discretion to rely on
the reasonable opinions of its own qualified experts even if,
as an original matter, a court might find contrary views more
persuasive.” Marsh v. Oregon Nat. Res. Council, 490 U.S.
360, 378 (1989).
In sum, the Navy’s 2009 EA identifies and incorporates
by reference the Unified Facilities Criteria, which was made
available to the public and explains the minimum
antiterrorism force protection standards for public
consideration. Further, “informed public participation” that
included considerations of those antiterrorism force
protection standards at the Navy Broadway Complex is
evident in the record, in the public’s participation in
meetings, in the Navy’s solicited public comments, and in the
Navy’s responses to those comments.
We are satisfied that the Navy’s 2009 EA “foster[ed] both
informed decision-making and informed public
participation.” Ctr. for Biological Diversity, 538 F.3d at 1194
(internal quotation marks omitted). The Navy could certainly
have made the public’s participation easier by including more
specific information about the potential environmental effects
of terrorism and by adding information from the Unified
SDNBCC V. USDOD 17
Facilities Criteria in the 2009 EA itself to create a single,
clear document. Nonetheless, the Federal Defendants’
method of addressing those concerns can “reasonably be
discerned.” Mothers for Peace II, 635 F.3d at 1118. The
Navy considered the relevant factors in its “hard look” at
potential terrorism at the Navy Broadway Complex. The
Federal Defendants did not abuse their discretion in
determining that there was no significant impact from the
possible environmental effects of potential terrorism at the
Navy Broadway Complex, and a Supplemental
Environmental Impact Statement is thus not required.
CONCLUSION
Our precedent requires the Federal Defenders to consider
the environmental impact of the Navy Broadway Complex’s
development, and to inform the public that they have
considered environmental concerns in their decision-making
process. We conclude that they have taken a hard look at the
environmental consequences of their actions, and therefore
fulfilled their obligations under NEPA.
AFFIRMED.
CARR, Senior District Judge, dissenting:
I agree that San Luis Obispo Mothers for Peace v.
Nuclear Regulatory Commission, 449 F.3d 1016 (9th Cir.
2006), required the Federal Defendants to address the
environmental consequences of a possible terrorist attack on
the San Diego Navy Broadway Complex. But I respectfully
18 SDNBCC V. USDOD
dissent from the majority’s determination that the Federal
Defendants adequately addressed those consequences.
The Naval Criminal Investigative Service determined
there was “no known specific threat” of a terrorist attack at
the Complex. For that reason, the Federal Defendants
deemed the risk of such attacks “too speculative, remote and
removed from the environmental effects of the proposed
action to merit further analysis[.]”
That reasoning is deeply flawed, as the majority rightly
observes. Mothers for Peace makes clear that “[t]he numeric
probability of a specific attack is not required in order to
assess likely modes of attack, weapons, and vulnerabilities of
a facility, and the possible impact of each of these on the
physical environment[.]” 449 F.3d at 1031.
What is more, the Federal Defendants have not ruled out
the possibility of a terrorist attack at the Complex. Cf.
Ground Zero Ctr. for Non-Violent Action v. U.S. Dep’t of the
Navy, 383 F.3d 1082 (9th Cir. 2004) (Navy not required to
consider environmental impact of accidental missile
explosion, where Navy determined risk of such explosion “is
between one in 100 million and one in 100 trillion”). Rather,
they have acknowledged the “significant” risk of terrorism in
the continental United States and identified “a wide variety of
attack methods” terrorists are likely to employ. Accordingly,
the Federal Defendants could have, and should have,
considered the environmental impact of at least a few attack
scenarios at the Complex.
I am mindful that the Federal Defendants revised the
Environmental Assessment after receiving public comments
about a potential terrorist attack at the Complex. But those
SDNBCC V. USDOD 19
revisions only strengthened the Complex’s defenses against
a potential terrorist attack; they did not assess the likely
environmental impact of such an attack.
For these reasons, I respectfully dissent.